THE TRUE RULE FOR CONGRESSIONAL ACTION. 373 Europe deal with conquered provinces, without regard to the nature of our republican institutions, or the limits of constitutional authority. There is no authority given by the Constitution to hold conquered territory as a province, with the people inhabiting it deprived of the right of self-government and equal representation in Congress. Whenever our government shall enter upon a career of conquest and subjugation, it will forfeit. its character of a free republic, in which equal rights are guaranteed to all men. In regard to the political weight which the South derived from the presence and representation of its colored population, Mr. Stevens was a little in error. Instead of the South being entitled to seventy representatives under the apportionment based on the census of 1860, counting three-fifths of the negroes, it was entitled to eighty-five. He said that the seventy would be increased to eighty-three if the remaining two-fifths were represented; whereas, on that basis the eighty-five would have risen to ninetyeight. He proposed to take from the South the whole negro representation, which, he said, would reduce the representation to about forty, whereas it would have remained at about fifty-five or fifty-six. He doubtless had in his mind the representation of the Confederate States, when he spoke of the Southern representation being seventy. Does the line of argument followed by Mr. Stevens touch the real merits of the question? Does it show any acknowledgment that the Constitution. is the ganglion, the productive organ of Federal action; and that its powers are the nerve-fibres which alone give vital force to the will of Congress? His points, citations, and conclusions might be convincing in a prize case, where the court "must be governed by the principles of public law applicable to civil and international wars." They might do very well in any suit involving only personal or property rights. But his argument was not in the line of statesmanship. There was no precedent applicable to the case. The question presented was political. No Federal or state court could take jurisdiction for its determination. Neither municipal nor international law could furnish principles for determining the relation of any state of the Union to the government of the United States while the Federal Constitution remained a binding instrument on that government and the states respectively. There, in that charter, in it alone is to be found the decisive rules for congressional action. Where in that charter is to be found the doctrine of forfeiture of state rights? Where the doctrine of state felo-de-se? Where of war between the states? If by reason of the extent of the insurrection, and the action of foreign powers we were compelled to suppress secession under the rules of war, does it follow that the insurrection was a war? The words "rebel" and "insurgent" imply citizenship. They do not imply alienage. Suppose the State of Maine were now to pass an ordinance of secession, assert her independ ence, and resist with all her force the national authority, would that be felode-se? Would she be no longer a state of the Union? If not, by what right could we assume to make a conquest of her territory? If Mr. Stevens' argument were a sound one, would not the Canadians have as good a right to ask her to join their Confederation as we should have to ask her to return to the Union? Would they not have as much right to use force in defending her as we should have to make war on her? The argument from belligerency, like that for the right of secession, be it ever so strong, can have no force where there is devotion to brotherly unity. Could separation be effected without warlike hostilities? If it can, it must be because parties are so evenly balanced, and so distinctly marked and divided by a geographical line athwart the continent, that war between them would be manifest folly. On the contrary, if secession must always be effected by war, it will never be resorted to unless there is great unanimity in a large and contiguous portion of the Union. Wherever and whenever this is the case, no one can successfully dispute the right of the government to resist separation in the modes of war. What would any one care for the abstract "rights" of secession? Even the secession leaders disregarded their own theory when they apprehended that it might be turned against themselves. They stood ready to overwhelm the menaced secession of North Carolina from the Confederacy, by the troops of adjacent and sister states. To hold states as territories after a war for a Union of states, is just as illogical. Suppose the radical doctrine is admitted, on what grounds of ethics or international law is the "Confederate war debt" to be repudiated? Suppose we should conquer Mexico, could we lawfully repudiate the debts of her government? When we came to amend the Constitution, after the national authority had asserted itself over the insurgent states, did we speak of war or conquests, or prohibit the payment of any war debts? No. We said: "But neither the United States, nor any state, shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States." Was this an admission that we had conquered territories in a war? Was it not a plain assertion that the strife was an insurrection and rebellion, and that all contracts in aid of it were null and void. Payment of them cannot even be voluntary. States and Congresses which might desire to pay them are prohibited from so doing. When secession is treated in the constitutional way, as an insurrection or rebellion, no questions can arise that will involve contradictory conclusions. The moment the Federal power withdrew its action into its own sphere, that moment the sovereignty of the states asserted itself. To this course, To this course, the calming influences of better judgment at last brought the people of the North. It would have been reached in a very short time if moderation, and not passion, had obtained sway in the councils of the Nation. CHAPTER XXI. TEMPORARY STATE REORGANIZATION IN THE SOUTH. STATUS OF THE COLORED PEOPLE - DEMANDS FOR THEIR ENFRANCHISEMENT — THE FIRST RECONSTRUCTION ACT-PRESIDENT JOHNSON'S VETO— THE ATTORNEY-GENERAL'S OPINION - MARTIAL LAW TO GOVERN THE SOUTH-DISFRANCHISEMENT OF THE INTELLIGENT PRESIDENT JOHNSON'S POLICY - ITS OPERATION – REORGANIZATION IN TENNESSEE WILLIAM G. BROWN- T HE temporary organizations of the Southern States under the proclamations of Presidents Lincoln and Johnson were suffered to remain in force until the spring of 1867. In none of them was the suffrage conferred upon colored men, and in some of them the legislatures enacted laws which discriminated against the colored people in other respects. Some tutelary legislation was contemplated by Mr. Lincoln in behalf of the freedmen. It was hinted at in his proclamation of Dec. 8, 1863, as a temporary expedient consistent "with their present condition as a laboring, landless, and homeless class." But this concession to the state legislatures was far from being satisfactory to the majority of Congress. The discriminating laws, though guarded in terms, and intended to protect the emancipated slaves, were to be enforced by men who had held them in slavery. It was surmised that these men would abuse a trust which was a limitation upon their long-exercised, hereditary and absolute authority. Loud complaints were soon heard of the tyranny and cruelty exercised over the blacks. Congress was in no mood to listen to such complaints with indifference. Northern and congressional sentiment was rapidly developing in favor of a more radical treatment of the South. It began to be believed that nothing short of an unqualified grant of suffrage to the negroes would secure them peace, with justice. It was also thought that the predominance of the Republican party would be assured by such a grant. As a tentative measure, bills were introduced in each house for the establishment of negro suffrage in the District of Columbia, and in all the territories. The bill for the District encountered strenuous opposition. Many Republican Representatives from states which confined the right of suffrage to white men, or encumbered it in the case of colored men with educational or property qualifications, naturally hesitated. When called on by the exigencies of party to invest with the franchise the whole mass of illiterate blacks in other communities which had no voice in determining the question, they hesitated. But they overcame their scruples, and in January, 1867, the District bill was passed, over President Johnson's veto. The Territorial Suffrage bill was adopted by both houses, during the same month, by overwhelming majorities. In pursuance of the same policy, the act known as the Reconstruction act was likewise passed by Congress over the President's veto, on March 2, 1867. This bill goes under a misnomer. It is entitled, "An Act to provide for the more efficient government of the rebel states." It should have been called, "An Act for the more thorough military subjugation of the states lately in insurrection against the United States." The act, after alleging that no legal state governments or adequate protection for life and property existed in the states of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, provided that these states should be divided into five military districts, under the command of officers of the army assigned thereto by the President. Each of these commanders was to have under his control troops enough to enforce his authority. The power conferred on these commanders within their districts was almost unlimited. The fifth and sixth sections of the act authorized the people to reconstruct their state governments by spontaneous action, though on prescribed conditions. These sections, however, were superseded by the act of March 23d, following. This act not only fixed the conditions of reconstruction, but provided that the process should be inaugurated and conducted by the military commanders. In assigning his reasons for withholding his signature from this measure, President Johnson denied that the states in question were without legal governments. He insisted that the true purpose of the bill was not to enforce peace and good order, but to compel the people of those states to confer the right of suffrage on the negro, and to ratify the Fourteenth Amendment to the Constitution of the United States. In the course of his long and searching analysis of the bill, the President criticised the powers it conferred PRESIDENT JOHNSON DEFENDS THE CONSTITUTION. 377 on the military commanders. He said: 'The power thus given to the commanding officers over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. Everything is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. . He may arrest his victims wherever he finds them, without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded to do so. To a casual reader of the bill, it might seem that some kind of a trial was secured by it to persons accused of crime, but such is not the case. The officer'may allow local civil tribunals to try offenders,' but, of course, this does not require that he shall do so. If any state or Federal court presumes to exercise its legal jurisdiction by the trial of a malefactor without his special permission, he can break it up, and punish the judges and jurors as being themselves the malefactors. It is plain that the authority here given to the military officer amounts to absolute despotism. Such a power has not been wielded by any monarch in England for more than five hundred years. In all that time no people who speak the English language have borne such servitude." This was strong language, but it cannot be regarded as exaggerated. The South was subjected to military despotism, pure and simple. It is vain to attempt to disguise the fact. Mr. Stevens, of Pennsylvania, as shown in a preceding page, denounced President Johnson's reconstruction policy as arbitrary, and the constitutions formed under it as having been adopted under duress; and lo! his own measure was tenfold more arbitrary and despotic The little finger of the legislature was thicker than the President's loins. Mr. Johnson went on to show, in an elaborate argument, that the act violated the plainest provisions of the Constitution. It established martial law in a time of profound peace; it suspended the writ of habeas corpus; it swept away every vestige of republican government in ten states; and it was, in fact, a bill of attainder against nine millions of people at once. He exposed the tyrannical and unconstitutional character of this act, with force and clearness. But it was so flagrant a departure from all the landmarks of civil liberty, as set up and observed from the days of Magna Charta to the present times, that argument would seem entirely superfluous. Apart from the absolute despotism which the act established over the Southern people, there were wholly unnecessary infractions of the Constitution, in the clauses which ignored and attempted to exclude the legitimate authority of the President of the United States, in favor of the commander of the army, who in effect, was made the executive of the Nation. Mr. Sumner, in ante-bellum days, was wont to refer to the congressional enactment in reference to fugitive slaves, as the "Fugitive Slave Bill." He would never allow it to be an "act." That term implied, as he said, a constitutional exercise of power by |